Designs of products incorporating a graphical user interface (GUI) became eligible for design patent protection in China on May 1, 2014. More than 2,500 GUI design applications were filed that May, including over 1,400 on May 1 alone.
The vast majority of applicants that month were domestic applicants, more than 70% of whom were enterprises. In terms of product fields, smartphones and computers incorporating GUIs accounted for more than 80% of the applications.
Lin Xiaoyue, Director of SIPO's Design Examination Department, answered questions about filing GUI design applications. The interview is set out below.
Question:
What is the most common problem in the applications already filed?
Answer:
The most common problem is that the GUI design is not shown clearly and completely. Unclear presentation usually results from missing necessary views or explanations. For example, without a necessary view or explanation of the product in use, it may be difficult to identify what the drawings or photographs show, or to determine whether it is eligible subject matter. Before filing, applicants and attorneys should carefully check whether the views and brief explanation provide sufficient design information.
Question:
Not every GUI design is eligible for protection. How is eligibility assessed?
Answer:
Some GUI designs in the applications already filed are outside the scope of design patent protection. Although the Guidelines for Patent Examination contain express provisions, eligibility can still be difficult to assess. Examples include distinguishing a webpage's graphic and textual layout from a web application, and a game image from a software interface.
To obtain a valid design patent and effective protection, applicants should use the drawings or photographs and brief explanation to show the GUI's design, use and manner of interaction as clearly as possible. This helps the examiner assess the subject matter and reduces uncertainty.
Applicants may find it difficult to distinguish game images from software interfaces. In practice, examiners make an overall assessment based on the name of the product incorporating the GUI, the drawings or photographs, the brief explanation and common knowledge in GUI design.
Question:
Can the design of a single icon be protected?
Answer:
An icon is protected as a design element of a product. It is only one component of an interface, and the interface must be protected together with the product as a whole. Under the principles of overall observation and comprehensive assessment, protection is therefore limited if the applicant seeks to protect only the specific pattern of an individual icon.
This follows from the absence of partial design protection in China at the time. The same problem arises with other products. For example, a new design for a cup handle cannot be protected by itself: the applicant must combine the handle with the cup and seek protection for the complete cup design. Such protection is not sufficient to protect the innovation in the component alone. Other forms of protection, such as trademark protection, may be considered for an individual icon.
Question:
Can a GUI layout be protected by a design patent?
Answer:
Some applicants and attorneys have submitted only a GUI layout in an attempt to obtain broader protection. Such a layout shows the positions of interface elements but not the detailed design of each element. For example, in an interface containing several icons, the icon patterns may be deleted, leaving only frames showing their positions.
It might appear that this provides broad protection: regardless of the specific design of each element, another design with the same layout would fall within the patent's scope. Objectively, however, the layout is only part of the overall interface design. Such an application is similar in some respects to a request for partial design protection. It does not comply with China's then applicable principle of protection for the design as a whole, and does not clearly show the interface design. In examination practice, merely combining a layout with a product is therefore insufficient for design patent protection.
In practice, an interface may also contain content that changes with time or the environment and does not form part of its design, such as the camera view displayed in a mobile photography application. Such content can obscure the GUI design and should be removed, with an explanation in the brief description. If much of the interface consists of this content, the remaining view may resemble a layout. The two are nevertheless different: the former seeks protection for the interface design excluding the changing content, while the latter seeks protection for the arrangement of design elements itself.
Question:
How are similar designs assessed in GUI applications?
Answer:
Under the principle of protection for the design as a whole, similar GUI designs are assessed through overall observation and comprehensive assessment. Both the product designs and the GUI designs must be similar.
Some applicants combine the same GUI with different product designs in one similar-design application to obtain broader protection. If the product designs are similar, they may be included in one application as similar designs. If the product designs differ substantially, the examiner will require the applicant to divide the application.